FILED 


MARCH 17, 2015 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASHINGTON, ) 

) No. 31794-3-111 

Respondent, ) 

) 

v. ) 

) 

LARRY GENE MARQUETTE, ) UNPUBLISHED OPINION 

) 

Appellant. ) 

FEARING, 1. - After a traffic stop, law enforcement officers seized 

methamphetamine and drug paraphernalia from Larry Marquette's car. The trial court 

convicted Marquette ofone count ofpossession of a controlled substance with intent to 

deliver. On appeal, Marquette argues that evidence seized inside the car and an 

inculpatory statement made at the time ofthe seizure should be suppressed. He also 

challenges the chain of custody ofthe methamphetamine. We affirm the trial court's 

denial ofthe motions to suppress and affirm the conviction. 
No. 31794-3-111 

State v. Marquette 

FACTS 

On the afternoon of April 4, 2012, Spokane County Deputy Sheriff leffThurman 

observed Larry Marquette drive eastbound on 1-90. Marquette exited the freeway at the 

Argonne Street exit from the fourth lane, without signaling. The fourth lane gives the 

option to continue on 1-90 or exit, and the fifth lane is an exit only lane. Thurman 

followed Marquette offthe freeway and northbound onto Argonne before turning on his 

emergency lights at the intersection ofArgonne and Knox. 

When Deputy leffThurman activated his patrol car's emergency lights, he 

observed Marquette immediately reaching toward his seat, which Thurman characterized 

as a furtive movement. Thurman took this furtive movement seriously and requested 

assistance. 

Larry Marquette drove in the far left lane of Argonne. He later testified that he did 

not immediately pull his car to the side because of considerable traffic and the absence of 

a safe place to stop. When Marquette failed to stop at the intersection with Knox, Deputy 

Thurman activated his siren and followed Marquette's car to the Montgomery 

intersection, where Marquette turned left and stopped in a dirt lot. Marquette testified 

that he saw the dirt lot and signaled to the officer by pointing toward the lot out his car 

window while waiting to tum left on Montgomery. Washington State Patrol Trooper 

Kristopher Stone coincidentally saw Deputy Thurman's car's emergency lights and 

pulled into the lot as Thurman physically restrained Marquette. 

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No. 31794-3-111 

State v. Marquette 

Larry Marquette and Deputy Jeff Thunnan disagree about the events that occurred 

after the stop in the dirt lot. At the suppression hearing, Thunnan testified: 

[Tbunnan]: 1quickly exit my vehicle to try to get control of the 

driver to have him show me his hands, because 1 don't know ifhe's trying 

to retrieve or conceal a weapon. 1 noticed, in my peripheral vision, a 

trooper car pulling up. 1 approached the driver's door ofthe vehicle, 1 tell 

Mr. Marquette to show me his hands, he showed me his hands. 1 open the 

door of his car. 1 tell him-have him exit the car. When he exits the car, 1 

immediately take control of his hands because 1 don't know ifhe has 

weapons on his person. 

[By Prosecutor]: Could 1 stop you there? When you say take 


control of his hands, how are you doing that? 


A. Basically took his ann, placed it behind his back into a handhold, 

and walked him back to my patrol scar [sic]. 

As 1 was walking-as 1 had him exit the car, Trooper Stone ... came 

over to the side with me, the driver's side. As 1 was walking Marquette 

back, Mr. Marquette back to my patrol car, 1 told Trooper Stone to conduct 

a frisk ofthe-underneath the driver's seat for any weapons. 

Q. Okay. What did you do with Mr. Marquette then? 

A. 1 walked him to the front ofmy patrol car, asked him what he 

was trying to hide. He said he was trying to get his cell phone. 1 told him 

that 1 was gonna frisk him down for weapons. 1 asked him ifhe had any 

weapon on his person, he said no. And then 1 asked him if 1 could search 

his person, he said yes. And about that same time, Trooper Stone walked 

up to me and said that he didn't enter the vehicle. He said he observed 

what appeared to be a baggy ofmethamphetamine on the floorboard ofthe 

car on the driver's side. 

Q. What do you do when Trooper Stone gives you that infonnation? 

A. 1 advised Mr. Marquette he was under arrest. 1 placed him into 

custody and detained him in handcuffs. 

Q. What do you did at that point? 

A. At that point 1 placed him into the back seat of my patrol car. 1 

had Trooper Stone stand with him. 1 walked up to the vehicle, 1 looked in 

from the outside, confinned what Trooper Stone saw, 1 walked back to Mr. 

Marquette. 

Q. And when you get back there, what do you do? 

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No. 31794-3-111 

State v. Marquette 

A. Had him-I took him back out ofthe patrol car and 1continued 

to read him his Miranda rights, which he said-at first he said he did not 

understand them. And 1 told him that 1 didn't want to play any games, he 

looked like he was an educated man. And he said, "All right, 1 don't want 

to play games either." And he continued to tell me he did understand his 

rights. 

Q. Okay. And then you obtained consent to search? 

A. Then 1 obtained consent to search the vehicle. Also gave him a 

consent to search card, which advised him he has the right to refuse, restrict 

or revoke the search. He understood and he also gave consent to search the 

vehicle. 

Q. Okay. 

A. 1 unhandcuffed his hand at that time and allowed him to sign 

both cards. 

Q. Who did the search ofthe vehicle? 

A. 1 did. 

Report ofProceedings (RP) (Oct. 18,2012) at 62-65. 

Larry Marquette testified at the suppression hearing: 

[Marquette]: ... The deputy came up and opened my car door and 

told me to get the F out ofthe car, right. 

[Counsel]: Let me stop you there and go back a minute. While you 

were driving in the distance between 1-90 and where you stopped, okay. 

Were you making any movements with your hands? 

A. Yeah; 1 was looking for my cell phone. 

And it's a stick shift so, 1 mean, it's a five speed. 

Q. Where were you looking for-what point in the car or on you 

were you looking for your cell phone? 

A. Well my car's-it's probably in my seat and coat pockets 'cause 

1 was wearing two coats. 

Q. All right. Okay. So let's jump forward again to where wejust 

left offprior to that question. The deputy approaches your car. And what's 

said? 

A. He opened the car door and told me to get the F out ofthe car. 

Q. Okay. What did you do or say, if anything? 

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I A. I held up my hand and said, "Easy, tough guy, it ain't that 

serious." 

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I took me and put me down on his car. And I told him, "Man, there's no 


need to get violent." He says, "If I was getting violent, you'd be on the 


ground." I'm like, "Okay." 
 ! Q. How did he-in what manner did he put you on the car? 


I, A. Arm behind the back and like-yeah, like I was resisting him, 


i which, you know. 
 !, Q. Were you standing? Were you bent over? 

A. I was bent over, face down on his car, yes. 

Q. Was it one hand behind your back? Or both? 

A. Well, he first had the one, then he took the other, yeah. 

Q. Okay. What happened next? 

A. He says what was I looking for, I said my cell phone. 

And then he told the other officer to look under the seat. 

I told him, "Under Arizona v. Gantz (Phonetic), you can't search my 

car, I've been removed." 

Q. Now what happened after the-I'm not asking you what was 

said, necessarily, but what happened after the officer looked into your car? 

A. The other officer came up and said there was some meth in there. 

Q. All right. Were you then arrested? 

A. Yeah. He had put the cuffs on me when he put me on the car. 

Q. Before the other officer went and looked at the car? 

A. Yeah. 

Q. All right. Okay. Were the doors ofthe police car opened or 

closed? 

A. Closed. 

Q. All right. Were you able to get out ofthat car? 

A. Absolutely not, no. 

Q. Why not? 

A. Cause I was in handcuffs and, I mean, the door's closed to the 

car. 

5 

No. 31794-3-111 

State v. Marquette 

RP (Oct. 18,2012) at 24-27. 

Deputy Thurman found one cell phone in the passenger seat and another in 

Marquette's pocket. The cell phone removed from Marquette's person rang in excess of 

ten times while Deputy Thurman spoke to Marquette. 

Jeff Thurman testified he obtained consent to search the vehicle and released the 

handcuffs long enough for Larry Marquette to sign a consent to search card and a 

Miranda waiver card. Thurman testified that Marquette was evasive at first, stating he 

did not understand the rights being read to him, but that he ultimately cooperated. 

According to Thurman, Marquette stated he used methamphetamine that morning and 

officers would find a baggie of methamphetamine on the driver's floorboard. Thurman 

searched Marquette's car and found 

the same bag that Trooper Stone advised me of on the floorboard, 

driver side floorboard front. There was a knife next to it. It appeared that 

the front edge of it had been cut off. The same white crystal substance that 

1 recognized from my training and experience as methamphetamine was, 

also, on the seat, itself, the driver seat. 

On the passenger seat, there was a black bag that contained several 

small bindle baggies that are commonly used to package drugs from my 

training and experience, a cell phone and then the stereo system in the 

vehicle appeared it had been removed multiple times. 1 was able to just 

barely pull on it, and it came all the way out. 

There was another bag stuffed behind that that contained the same 

type ofpackaging materials and baggies that was in the bag on the 

passenger seat were, also, inside the bag that was behind the stereo. 

There was, also, a white crystal substance that 1 recognized as 

methamphetamine in there and a scale inside there that had a white crystal 

residue on it. 

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State v. Marquette J 

I RP (Apr. 15,2013) at 25-26. 

I 

I Deputy Sheriff Jeff Thurman testified that after he completed the search, he 

I returned to his patrol car to question Marquette, who told him he was on probation and i 

I sold methamphetamine "here and there" to make ends meet. RP (Apr. 15,2013) at 27. I 

! 

According to Thurman, Marquette said he did not want to speak with drug detectives, but 

told Thurman the bag ofmethamphetamine found behind the stereo would contain about 

an eighth of an ounce. Thurman summoned a tow company to impound Marquette's car, 

but he later cancelled the impound after Marquette asked if a friend with a tow truck 

could retrieve the car. Thurman testified that he allowed the friend to tow the car because 

Marquette was cooperative. Thurman also testified that, based on his training and 

experience, Marquette appeared to be high on methamphetamine because ofrapid speech. 

In contrast, Larry Marquette testified he told Deputy Thurman three or four times 

that he did not want him to search the car and, under Arizona v. Gant, the deputy could 

not search it. Marquette averred that Thurman remarked that suspects did not usually 

"thro:w case law" at him and that he would impound the vehicle and procure a search 

warrant anyway. RP (Apr. 15,2013) at 45-46. Marquette told Deputy Thurman that he 

could not afford to pay to retrieve the car from impound and needed the car to visit his ill 

mother. Marquette testified Thurman said, "you let me search it. I will see what I can do 

for you." RP (Apr. 15,2013) at 47. Marquette declared that Thurman told him that, ifhe 

7 

No. 31794-3-III 

State v. Marquette 

would talk about the drugs found behind the stereo, Thurman would try to limit the 

charges to being in possession rather than possession with intent to deliver. 

PROCEDURE 

The State of Washington charged Larry Marquette with one count of possession of 

a controlled substance with intent to deliver. Marquette filed a CrR 3.6 motion to 

suppress the methamphetamine and other evidence obtained via the warrantless search of 

his vehicle, arguing (1) no exceptions to the warrant requirement applied, (2) the traffic 

stop was pretext for an unrelated criminal investigation, and (3) Marquette's consent to 

search the vehicle was not validly obtained. 

The trial court heard testimony and argument on the CrR 3.6 motion and denied it. 

The trial court entered, in part, the following findings of fact: 

6. Deputy Thurman approached the driver, later identified as Larry 

Gene Marquette, and ordered him to show his hands. The defendant 

complied. The deputy ordered the defendant to get out of the car. The 

defendant complied. The driver's door remained open. Deputy Thurman 

placed the defendant in handcuffs and escorted him next to his patrol car. 

Deputy Thurman asked the defendant what he had been doing reaching 

under the driver's seat. The defendant replied that he was reaching for his 

cell phone. Deputy Thurman asked the defendant if he had any weapons on 

his person and the defendant replied no. 

7. Trooper Christopher Stone ofthe Washington State Patrol arrived 

to assist the deputy. The deputy asked the trooper to look under the seat; 

however the trooper did not look under the seat. 

8. Trooper Stone went to the open door. He saw what he believed 

to be a baggie of methamphetamine on the front driver's side floorboard. 

The trooper did not enter the car. He returned to Deputy Thurman and told 

him what he had observed. Deputy Thurman arrested the defendant. 

8 

No. 31794-3-III 

State v. Marquette 

9. Deputy Thurman advised Mr. Marquette of his Miranda 

warnings. The defendant indicated that he understood his rights. The 

deputy read a search consent card to the defendant. The defendant signed 

the card. The deputy searched the car and seized items of evidence. 

Clerk's Papers (CP) at 130-31. 

Based on its findings, the trial court entered, in part, the following conclusions of 

law after the CrR 3.6 hearing: 

3. There was no search ofthe vehicle, as defined by the Washington 

State or United States Constitution, by Trooper Stone. The car door was 

open. The car was in a public area. The trooper was in a public area. The 

trooper saw the baggie in open view when he was in a place where he was 

authorized to be. 

4. Deputy Thurman advised the defendant ofhis Miranda and 

Ferrier warnings. The defendant consented to the search ofthe car. The 

evidence was seized after the defendant gave consent to search. There was 

no violation of Arizona v. Gant. 

CP at 131. 

Larry Marquette filed a CrR 3.5 motion to suppress the statements that Deputy Jeff 

Thurman alleged he uttered after his arrest. Marquette argued: (1) a CrR 3.5 hearing was 

needed to determine whether a proper .Miranda warning preceded his statements, and (2) 

his statements were involuntary under the Fourteenth Amendment and inadmissible for 

any purpose. After hearing testimony and argument, the trial court orally ruled 

the statements Mr. Marquette made were valid statements. They 

were even though custodial, he was advised of his rights. 

As far as the statements was he offered something in exchange for 

waiving his rights, even though they're Mr. Marquette's own testimony that 

when he told the deputy he couldn't search, the deputy said he was going to 

tow it and get a search warrant, which is his right to tow the car and get a 

9 

No. 31794-3-II1 

State v. Marquette 

search warrant. 

Mr. Marquette had said he couldn't afford it. He didn't want to get 

it out. So whether Mr. Marquette made that offer, I did not find that the' 

deputy offered that in lieu of him waiving his rights based on Mr. 

Marquette's own testimony. 

The Court is still going to find that they were knowingly, voluntarily 

and they were consensual at the time for waiving his rights. 

RP (Apr. 15,2013) at 70-71. 

The trial court did not enter written findings offact or conclusions of law in 

support ofthe denial ofthe erR 3.5 motion until one year after the hearing and after 

Marquette filed his opening briefin the present appeal. 

The criminal charge proceeded to a bench trial. Spokane County Sheriff Deputy 

leffThurman again testified that, during his search ofLarry Marquette's car, he found 

two small baggies ofmethamphetamine on the floorboard, two small baggies of 

methamphetamine behind the car stereo, and a small scale with white residue in a nylon 

bag behind the car stereo. Thurman also found a black nylon bag on the passenger seat 

that contained a cell phone, address book, and empty small bindle baggies with little 

green alien skulls printed thereon. Thurman testified that the bags found on the 

floorboard and the bindle baggies were 1" x 3/4" in size. 

At trial, Deputy Thurman testified that, after he finished his search of the car, he 

spoke with Larry Marquette, who told him of 1/8 of an ounce of methamphetamine 

behind the car stereo. Thurman declared that the cell phone found on Marquette's person 

rang multiple times while they were waiting for Marquette's friend to come and tow his 

10 

No. 3 1 794-3-II1 

State v. Marquette 

car. 

At trial, Deputy JeffThunnan testified he labeled and placed in separate evidence 

bags: exhibit (1) the crystalline substance found in the baggies on the floorboard and 

behind the car stereo, exhibit (2) the digital scale, exhibit (3) empty baggies and 

cellophane found behind the car stereo, exhibit (4) the black nylon bag found behind the 

car stereo, exhibit (5) a small red address book and the cell phones found on Larry , 

Marquette's person and on the passenger seat, and exhibit (6) the black nylon case found 

on the passenger seat, still holding the bindle baggies with green alien skulls printed on 

them. Thunnan placed all the items into a secure storage bin in the county sheriffs 

property room. 

JeffThunnan testified at trial that, before booking the evidence, he weighed at 0.2 

grams the methamphetamine found on the floorboard and at 1.6 grams the 

methamphetamine found behind the stereo. Thunnan used a scale from the sheriff 

department's property room to weigh the methamphetamine. He cleaned the scale before 

use. Thurman testified that the 1.6 grams found behind the stereo ofthe car was close to 

an eighth of an ounce, or about 2.29 grams. 

Detective Lloyd Hixson ofthe Spokane County Sheriffs Drug Unit testified that 

he transported exhibits 1 through 6 to the Washington State Patrol Crime Laboratory on 

June 15,2012, two and one-half months after the seizure ofthe evidence. Trevor Allen, a 

forensic scientist at the Washington State Patrol Crime Laboratory, testified that Alex 

11 

No. 31794-3-III 

State v. Marquette 

Seaboalt received exhibit 1 containing the methamphetamine on that same day. Alex 

Seaboalt did not testify at trial. Allen testified that, although he could not remember the 

time of day he first handled the methamphetamine, he received exhibit 1 with its original 

seal from the sheriff's office intact, and that he did not see any other openings in its bag. 

Trevor Allen testified at trial that he found two sealed zip lock bags in the exhibit 

1 folder. He also testified that he took the crystalline substance out of one bag numbered 

002 and weighed it at 5.81 grams. In addition, Allen testified that, on June 27, 2012, he 

conducted gas chromatography and microcrystalline tests to confirm the crystalline 

substance was a combination of methamphetamine and dimethyl sulfone, a lawful dietary 

supplement. Allen followed the same process for the second bag, numbered 003, and 

determined that it also held methamphetamine cut with dimethyl sulfone weighing 0.21 

grams. Allen then repackaged exhibit 1, sealed the evidence bag, and dated it. Allen 

testified he conducted the same process on the plastic bags found in exhibit 3, and 

discovered trace amounts ofmethamphetamine. On July 11,2012, Allen prepared a draft 

report of his test results, which he sent for peer review. The review occurred on July 16, 

2012. 

At trial,·Larry Marquette questioned Deputy Jeff Thurman about the discrepancy 

between the weights he recorded for the methamphetamine he recovered from 

Marquette's car and the weights recorded by Trevor Allen at the Washington State Patrol 

12 

No. 31794-3-111 

State v. Marquette 

Crime Laboratory Thurman testified "Apparently, 1 wrote down the wrong number or 

read the scale wrong." RP (Apr. 16,2013) at 181. 

When the State of Washington moved to admit exhibits 1 and 3 into evidence, 

Larry Marquette objected. He argued that the State could not lay a proper foundation for 

admission or comply with the confrontation 'clause absent testimony from Alex Seaboalt, 

the evidence custodian who received the exhibits from Detective Lloyd Hixon. 

Marquette also argued that the State had not properly accounted for the discrepancy in 

weights respectively taken by the Spokane County Sheriffs Office and the Washington 

State Patrol's Crime Laboratory. The State countered that issues of contamination or 

disparity in evidence go to weight and not admissibility, and that Alex Seaboalt's absence 

did not violate the confrontation clause. The trial court ruled in favor ofthe State and 

admitted exhibits 1 and 3. The court reasoned that Washington v. Campbell, 103 Wn.2d 

1,691 P.2d 929 (1984) holds that minor gaps in the chain of custody go to weight and not 

admissibility. 

Larry Marquette brought a halftime motion to dismiss and a motion to dismiss at 

the close ofthe State's case in chief. Marquette argued that the State lacked sufficient 

evidence to prove intent to deliver, based on corpus delicti, lack of corroboration, and 

unreliability ofthe weight ofthe methamphetamine found in Marquette's car. The trial 

court denied both of Marquette's motions. 

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No. 3 1 794-3-II1 

State v. Marquette 

The trial court found Larry Marquette guilty ofpossession of a controlled 

substance with intent to deliver. The court made an oral ruling with several findings of 

fact and concluded that the State proved all the elements ofthe charge: 

The issue then comes down to did he possess it with an intent to 

deliver. The Court looks at the evidence that Deputy Thurman testified to. 

He stated Mr. Marquette told him he had no job, but he had bought a car for 

$500. He had $612 in cash on him, two cell phones with one continuously 

ringing, the address book, the scale with residue, the bindles and the 

baggies, the additional baggies. 

Based on all ofthat, the Court would find without a reasonable doubt 

Mr. Marquette possess[ ed] a controlled substance. With the admission of 

selling the meth and made the $2,000 in the last two months, the Court 

would have to find that Mr. Marquette is guilty ofthe crime as charged. 

The Court did go through on the difference. Obviously, I looked at 

the pictures. One of the things is a gram is a lot smaller than I envisioned 

it. Even though I've seen them in trial, it's usually the jury that gets to look 

at the evidence closely. I actually got to look at the evidence. A gram is a 

lot smaller than expected. 

Deputy Thurman never testified that the scale that he used at the 

property room was certified. He did say he could have misread the scale or 

transposed the number. 

When the Court looks at the totality, all of the witnesses testified the 

envelopes appeared to be in the same condition, the pictures, also, showing 

the size and the actual drugs, themselves. Even the less than 6.2 grams is a 

small amount in consideration compared to what I had expected. The Court 

did note that. 

Deputy Thurman did say he wiped down the scale. Therewas 

nothing on it at the time he weighed it. Deputy Hixson, Deputy Thurman 

and the crime lab, Mr. Allen, all testified that they all appeared to be in the 

same condition as when they had it. 

RP (Apr. 18,2013) at 227-29. 

After trial, the trial court entered no written findings of fact or conclusions of law. 

After Larry Marquette filed his opening appellate brief, the trial court entered findings of 

14 

No. 31794-3-111 

State v. Marquette 

fact and conclusions oflaw for both the CrR 3.5 hearing and the trial. The findings for 

disputed facts at the CrR 3.5 hearing read, in relevant part: 

2. Mr. Marquette understood his Miranda rights. He testified that 

the reason that he said he didn't understand his rights was because he was 

angry and knew that he was going to jail anyway. 

3. Deputy Thurman did not offer anything to Mr. Marquette in 

exchange for his waiver of rights. Deputy Thurman would have ordered an 

impound of the car so that he could apply for a search warrant. Deputy 

Thurman had the ~ight to impound it for that reason. Mr. Marquette said 

that he couldn't afford to get the car out if it were impounded. The deputy 

did not offer something to the defendant to get him to waive any rights. 

CP at 254. The trial court entered one conclusion of law for the CrR 3.5 hearing: 

The statements made by Mr. Marquette to Deputy Thurman were 

made after Mr. Marquette had been advised of his Miranda warnings and 

after Mr. Marquette made a knowing, intelligent and voluntary waiver of 

those rights, as shown by his signing the rights card. The statements are 

admissible at trial. 

CP at 254. 

LA W AND ANALYSIS 

Issue 1: Whether the trial court's entry, after the appeal, offindings offact and 

conclusions oflaw for the trial and the erR 3.5 hearing demands reliefon appeal for 

Larry Marquette? 

Answer 1: No. 

Larry Marquette assigns error to the trial court's failure to enter written findings of 

fact and conclusions of law at the end of the bench trial and after the hearing on his CrR 

3.5 motion to suppress. The State responds that the assigned error is now moot since the 

15 

No. 3l794-3-III 

State v. Marquette 

trial court later entered findings and conclusions filed with this court after Marquette filed 

his opening brief. Marquette did not file a reply brief addressing whether he still assigns 

error to the trial court's initial omissions. We agree with the State that the issue is moot. 

erR 3.5(c) reads: 

After the hearing, the court shall set forth in writing: (1) the 

undisputed facts; (2) the disputed facts; (3) conclusions as to the disputed 

facts; and (4) conclusion as to whether the statement is admissible and the 


reasons therefore. 


erR 6.1(d) provides: 


In a case tried without a jury, the court shall enter findings of fact 

and conclusions oflaw. In giving the decision, the facts found and the 

conclusions of law shall be separately stated. The court shall enter such 

findings of fact and conclusions of law only upon 5 days' notice of 

presentation to the parties. 

Both court rules require entry of written findings of fact and conclusions of law 

after their respective hearings. The failure to enter written findings of fact and 

conclusions of law as required by erR 6.1 (d) requires remand for entry of written 

findings and conclusions. State v. Head, 136 Wn.2d 619, 624, 964 P.2d 1187 (1998). 

Reversal may be appropriate where a defendant can show actual prejudice resulting from 

the absence of findings and conclusions or following remand for entry of the same. 

Head, 136 Wn.2d at 624. This court will not infer prejudice from a delay of entering 

such findings and conclusions. Head, 136 Wn.2d at 625. That burden lays with a 

defendant. Head, 136 Wn.2d at 625. 

16 
No. 31794-3-III 

State v. Marquette 

A case is technically moot if the court can no longer provide the basic relief 

originally sought. Snohomish County v. State, 69 Wn. App. 655, 660, 850 P.2d 546 

(1993). Here, the trial court entered written CrR 6.1(d) and CrR 3.5(c) findings of fact 

and conclusions of law on May 1, 2014, and the State timely added them to the appellate 

record. Remand serves no purpose, since the trial court would repeat the same entry. 

Thus, the issue is moot. Larry Marquette has asserted no prejudice by reason of late entry 

ofthe findings and conclusions, so reversal is not warranted. 

Issue 2: Whether the trial court erred in denying Marquette's CrR 3.6 motion to 

suppress items obtained in the warrantless search o/his car? 

Answer 2: No. 

Larry Marquette contends the trial court erred in denying his motion to suppress 

the evidence obtained during the search of his car. Marquette specifically assigns error to 

the trial court's written conclusion oflaw 4: "Deputy Thurman advised the defendant of 

his Miranda and Ferrier warnings. The defendant consented to the search of the car. The 

evidence was seized after the defendant gave consent to search. There was no violation 

ofArizona v. Gant." CP at 131. Marquette argues: (1) Trooper Kristopher Stone's visual 

observation ofthe bag ofmethamphetamine on the car floorboard was not sufficient to 

justity a warrantless search of Marquette's vehicle, and (2) Marquette's consent to search 

the vehicle was not given freely and voluntary. We rule that Trooper Stone's 

observations of methamphetamine inside the car rendered the search ofthe car lawful. 

17 

No. 31794-3-111 . 

State v. Marquette 

Therefore, we affirm the trial court's denial ofMarquette's CrR 3.6 motion to suppress 

without addressing whether Marquette consented to the search. 

We review a trial court's denial of a CrR 3.6 suppression motion to determine 

whether substantial evidence supports the trial court's challenged findings of fact and, if 

so, whether the findings support the trial court's conclusions of law. State v. Cole, 122 

Wn. App. 319, 322-23, 93 P.3d 209 (2004). Challenged findings entered after a 

suppression hearing that are supported by substantial evidence are binding, and, where 

the findings are unchallenged, they are verities on appeal. State v. O'Neill, 148 Wn.2d 

564,571,62 P.3d 489 (2003). Larry Marquette does not challenge any of the findings of 

fact entered by the trial court upon denying the motion to suppress evidence. Therefore, 

we base our ruling on the facts found by the lower court. 

Larry Marquette argues that Trooper Stone's and Deputy Jeff Thurman's 

observation of a bag of what appeared to be methamphetamine on the car floorboard 

during a safety check of the car does not satisty the open view exception to the warrant 

requirement of article I, section 7 of the Washington Constitution. Marquette may be 

correct that the open view doctrine does not apply. Nevertheless, if the open view 

exception does not apply, the plain view exemption does. 

Searches conducted outside the judicial process, without prior approval by judge 

or magistrate, are per se unreasonable under the Fourth Amendment and article I, section 

7 of the Washington State Constitution, subject only to a few specifically established and 

18 

No. 31794-3-111 

State v. Marquette 

well-delineated exceptions. Arizona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710, 173 L. 

Ed. 2d 485 (2009); State v. Duncan, 146 Wn.2d 166, 171,43 P.3d 513 (2002). 

Washington allows a few jealously and carefully drawn exceptions to the warrant 

requirement, which include exigent circumstances, searches incident to an arrest, 

inventory searches, plain view searches, open view searches, and Terry investigative 

stops. Terry v. Ohio, 392 U.S. 1,88 S. Ct 1868,20 L. Ed. 2d 889 (1968); State v. 

Garvin, 166 Wn.2d 242,249,207 P.3d 1266 (2009). The State bears the burden of 

demonstrating that a warrantless seizure falls into a narrow exception to the rule. State v. 

Doughty, 170 Wn.2d 57, 61, 239 P.3d 573 (2010). 

The plain view doctrine deems a seizure reasonable when: (1) there is a prior 

justification for intrusion by a law enforcement officer into the accused's sphere of 

privacy, (2) the officer inadvertently discovers contraband, and (3) the officer 

immediately knows the contraband is evidence of a crime. State v. Chrisman, 100 Wn.2d 

814,819,676 P.2d 419 (1984); State v. Claflin, 38 Wn. App. 847, 853,690 P.2d 1186 

(1984). The plain view doctrine, however, does not justify the initial intrusion into the 

protected area. State v. Kennedy, 107 Wn.2d 1, 9, 726 P.2d 445 (1986). The officer must 

have some legitimate reason to be in a place not open to the public. In contrast, under the 

"open view" exception, the officer espies evidence of a crime while in an area open to the 

public, alternatively calle~ a non constitutionally protected area. State v. Seagull, 95 

Wn.2d 898, 901-02, 632 P .2d 44 (1981). If an officer sees evidence of a crime in a I

1 

19 

No. 31794-3-111 

State v. Marquette 

public area, the officer has not even conducted a search for purposes of the constitution. 

State v. Kennedy, 107 Wn.2d at 10 (1986). 

In Kennedy, our Supreme Court explained the difference between "plain view" 

and "open view." 

Whereas a "plain view" situation involves an officer viewing an item 

after a lawful intrusion into a constitutionally protected area, "open view" 

involves an observation from a nonconstitutionally protected area. State v. 

Seagull, 95 Wn.2d 898, 901-02, 632 P.2d 44 (1981). Hence, if an officer, 

after making a lawful stop, looks into a car from the outside and sees a 

weapon or contraband in the car, he has not searched the car. Because there 

has been no search, article [1], section 7 is not implicated. Once there is an 

intrusion into the constitutionally protected area, article [1], section 7 is 

implicated and the intrusion must be justified if it is made without a 

warrant. 

107 Wn.2d at 10. (emphasis omitted). 

State Patrolman Kristopher Stone spotted the methamphetamine inside Larry 

Marquette's car before Deputy leffThurman saw the drugs. Stone did not enter the car, 

but observed the drug by looking inside the car. The car was parked in a dirt lot and 

conceivably anyone could walk by the car, look inside, and notice the white crystalline 

substance. In other words, the evidence could have been in open view. To give 

Marquette the benefit ofthe doubt, however, we will analyze the seizure ofthe drug as if 

the plain view exemption applies. 

Under Washington case law, the plain view exemption justified the search and 

seizure ofthe methamphetamine. Larry Marquette's failure to signal his tum supported 

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No. 31794-3-111 

State v. Marquette 

Deputy Thurman's stop ofMarquette's vehicle. Marquette's furtive move inside the car 

validated Trooper Stone's sweep of the area under Marquette's car seat. To sweep that 

area, Stone necessarily needed to approach the car. Thus, Stone was justified to be near 

or against the car when he inadvertently saw the white powder and immediately knew the 

powder to be methamphetamine. 

A Terry stop and frisk may extend into the car ifthere is a reasonable suspicion 

that the suspect is dangerous and may gain access to a weapon in the vehicle. State v. 

Glossbrener, 146 Wn.2d 670,680,49 P.3d 128 (2002). When police conduct a Terrylike search of a vehicle, the scope ofthe search should be sufficient to assure the officer's 

safety. Kennedy, 107 Wn.2d at 12. A protective search for weapons must be objectively 

reasonable, though based on the officer's subjective perception of events. Glossbrener, 

146 Wn.2d at 681. 

In State v. Kennedy, the Supreme Court held an officer's search ofthe area under 

the driver's seat of a car pulled over on suspicion of its driver having just purchased 

marijuana was reasonable as a Terry frisk. The officer observed the driver make a furtive 

movement prior to being pulled over, and a passenger sat in the front seat while the stop 

was made. The Court held that our constitution allowed the officer to make a limited 

search of the passenger compartment to assure a suspect person in the car does not have 

access to a weapon within the suspect's or passenger's area of control. Kennedy, 107 

Wn.2d at 13. Because the officer was legitimately within the automobile's front seat, the 

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No. 31794-3-111 

State v. Marquette 

marijuana discovered in the officer's sweep under the seat fell under the plain view 

warrant exception. 

Fourteen years later, the Supreme Court refined this standard in Glossbrener, 

holding that an officer's Terry frisk of a car after the officer witnessed the driver make a 

similar "furtive gesture" was not objectively reasonable based on the intervening actions 

ofthe officer and driver. Glossbrener, 146 Wn.2d at 681. The officer did not conduct 

the Terry frisk ofthe car until after Glossbrener told the officer that his movements were 

made in an attempt to hide an open container of alcohol, the officer conducted a field 

sobriety test on Glossbrener and frisked his person, and the officer allowed Glossbrener 

to sit in the car while the officer checked for warrants. 

The Glossbrener Court contrasted Glossbrener's case with State v. Larson, 88 Wn. 

App. 849, 856-57, 946 P.2d 1212 (1997), where this court upheld as reasonable an 

officer's Terry frisk of a vehicle after the driver was out ofthe vehicle, where the officer 

saw the driver make a similar furtive gesture prior to pulling over. The Court found the 

cases distinguishable because, unlike in Glossbrener, Larson would have returned to his 

vehicle to retrieve his car registration and could have gained access to a weapon the 

officer suspected he hid by the furtive gesture. Glossbrener, 146 Wn.2d at 684. 

Larry Marquette's case is more like Larson than Glossbrener because, like 

Larson, Marquette was stopped for a traffic infraction, and would need to access his car 

again to retrieve his car's registration. Thurman would likely later allow Marquette to 

22 

No. 31794-3-111 

State v. Marquette 

drive away in his car. Although Marquette gave a nonthreatening reason for the furtive 

gesture upon pulling over and complied with Thurman's request to exit the car, this 

appeallacks the "intervening actions" that would lead an outsider to doubt an officer's 

objective concern for his safety. Thurman was justified in asking Trooper Stone to 

conduct a Terry frisk of the car to ensure it was free ofweapons. 

Issue 3: Whether the trial court erred in admitting testimony about the chemical 

composition ofevidence, when the arresting officer testified to a measurement ofthe 

controlled substance inconsistent with the chemical lab 's measurement? 

Answer 3: No. 

At trial and on appeal, Larry Marquette contends that the trial court improperly 

admitted evidence of the methamphetamine and drug paraphernalia discovered during the 

search ofhis vehicle. He emphasizes a significant discrepancy between the weight ofthe 

methamphetamine recorded by Deputy Jeff Thurman and the weight recorded at the 

Washington State Patrol's Crime Laboratory. He argues that the State must establish a 

chain of custody with sufficient completeness to render it improbable that the original 

items taken from the car had been exchanged with another or been contaminated or 

tampered with. Marquette contends that the weight discrepancy destroys the chain of 

custody. In response, the State of Washington contends that gaps in the chain of custody 

go to weight, not admissibility. We agree with the State. 

23 
No. 31794-3-111 

State v. Marquette 

Before a physical object connected with the commission of a crime may properly 

be admitted into evidence, it must be satisfactorily identified and shown to be in 

substantially the same condition as when the crime was committed. Gallego v. United 

States, 276 F.2d 914,917 (9th Cir. 1960); State v. Campbell, 103 Wn.2d 1,21,691 P.2d 

929 (1984). Factors to be considered include the nature of the article, the circumstances 

surrounding the preservation and custody of it, and the likelihood of intermeddlers 

tampering with it. State v. Campbell, 103 Wn.2d at 21. The proponent need not identify 

the evidence with absolute certainty and eliminate every possibility of alteration or 

substitution. State v. Campbell, 103 Wn.2d at 21. Identity and condition of an exhibit 

are always subject to rebuttal. State v. Music, 79 Wn.2d 699,713,489 P.2d 159 (1971), 

vacated in part on other grounds, 408 U.S. 940, 92 S. Ct. 2877, 33 L. Ed. 2d 764 (1972). 

The jury is free to disregard evidence upon its finding that the article was not properly 

identified or there has been a change in its character. State v. Campbell, 103 Wn.2d at 

21. However, minor discrepancies or uncertainty on the part of the witness will affect 

only the weight of evidence, not its admissibility. State v. Campbell, 103 Wn.2d at 21. 

The trial court is necessarily vested with a wide latitude of discretion in determining 

admissibility, which will not be disturbed absent clear abuse. State v. Campbell, 103 

Wn.2d at 21; Kiessling v. Nw. Greyhound Lines, Inc., 38 Wn.2d 289,295,229 P.2d 335 

(1951). 

The State presented evidence showing the transfer of custody of the 

24 

No. 31794-3-111 

State v. Marquette 

methamphetamine from the Spokane Sheriff's Office to the Washington State Patrol's 

Crime Laboratory. This believable evidence defied suggestions that the 

methamphetamine measured by the laboratory was different from the methamphetamine 

seized from Larry Marquette's car. The trial court heard no testimony questioning the 

credibility ofthe crime lab chemist who tested and verified the methamphetamine. The 

trial court reviewed photos ofthe samples and the samples themselves, and determined 

that the discrepancy in measurements was likely one oftranscription by Deputy 

Thurman. The trial court was thus well within its discretion in admitting the exhibits. 

Larry Marquette urges this court to apply a more stringent test in light ofState v. 

Roche, 114 Wn. App. 424, 59 P.3d 682 (2002). That case has little application here. 

In State v. Roche, this court granted James Roche a new trial after uncovered 

evidence showed that the Washington State Patrol chemist who testified in his case 

divested and ingested the heroin samples he tested at the crime lab. This court held that a 

rational trier offact could reasonably doubt the chemist's credibility, and thus the State 

needed to relay the foundation for admitting the test results against Roche at a new trial. 

State v. Roche is a unique and hopefully one-of-a-kind case. Other than the 

differences in measurements, the credibility ofthe lab chemist and arresting officer here 

are not challenged with regard to taking the measurements. Contrary to Marquette's 

argument, no heightened standard should apply. 

25 
No. 3 1 794-3-III 

State v. Marquette 

Issue 4: Whether sufficient evidence supported a conviction for possession with 

intent to deliver a controlled substance? 

Answer 4: Yes. 

Finally, Larry Marquette contends the State failed to meet its burden in proving he 

possessed methamphetamine with intent to deliver, in violation ofRCW 69.50.401. 

RCW 69.50.401(1) provides, in relevant part: "Except as authorized by this chapter, it is 

unlawful for any person to manufacture, deliver, or possess with intent to manufacture or 

deliver, a controlled substance." 

This assignment of error repeats but restates Larry Marquette's chain of custody 

argument. Marquette contends that the statute requires proof beyond a reasonable doubt 

that possession and intent to deliver refer to the same quantity of the controlled substance 

in question, and that the State cannot meet this burden as the quantity reported by Deputy 

Thurman is substantially different than the amount reported by the Washington State 

Patrol Crime Laboratory. We reject the argument for the reasons given earlier. We also 

question the validity of the argument because Marquette fails to identity the measurement 

to be used for purposes of his possession and the measurement to be used for purposes of 

his anticipated delivery. 

Evidence is sufficient if, viewed in the light most favorable to the State, any 

rational trier of fact could find the essential elements of the crime charged beyond a 

reasonable doubt. State v. Robbins, 68 Wn. App. 873, 875, 846 P.2d 585 (1993). A 

26 

No. 31794-3-III 

State v. Marquette 

defendant challenging sufficiency ofthe evidence at trial admits the truth of the State's 

evidence and all reasonable inferences therefrom. State v. Witherspoon, 180 Wn.2d 875, 

883,329 P.3d 888 (2014). 

Larry Marquette is correct that the State must prove a defendant possessed the 

same controlled substance he intended to deliver. Robbins, 68 Wn. App. at 876. 

However, the State met that burden here. Although the two weighings of 

methamphetamine differed, the trial court considered the discrepancy and found it did not 

call into question the validity of the evidence. The trial court also considered the 

attendant circumstances and found the evidence sufficient to reasonably infer intent to 

deliver. Those circumstances included small baggies, a scale, cash, and a repeatedly 

ringing cell phone in Marquette's possession. Sufficient evidence supports the 

conviction. 

CONCLUSION 

We affirm the trial court's denial ofLarry Marquette's motion to suppress 

evidence and motion to suppress his inculpatory statement. We affirm his conviction. 

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No. 31794-3-III 

State v. Marquette 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

WE CONCUR: 


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